North East London NHS Foundation Trust v Zhou

For the extension of time under section 111(2)(b) of the Employment Rights Act 1996, reasonable practicability is a fact-sensitive, objective inquiry. A claimant's reasonable mistaken belief that a valid claim has been presented may be an impediment, including where a timely claim is rejected for a minor but fatal error in the ACAS early-conciliation number.

Where a claimant has instructed professional advisers, however, the claimant is bound by their unreasonable conduct. The tribunal must therefore determine whether the advisers acted reasonably. Fault does not invariably establish unreasonableness, particularly where legal services have been limited to save costs, but the tribunal must address and explain that issue. A timely defective claim does not itself preclude an extension for the corrected claim.

The Claimant instructed solicitors to bring claims including unfair dismissal and whistleblowing detriment. To save costs, she agreed to complete the formal parts of the ET1 herself. On the final day of the primary limitation period, her solicitors lodged a form which contained an incomplete ACAS early-conciliation certificate number and was not accompanied by an acceptable fee.

The Employment Tribunal held that the form was correctly rejected. It nevertheless found that it had not been reasonably practicable to present a valid claim in time and that the corrected claim, submitted the following day after notification of rejection, was within a reasonable further period. The Respondent appealed the ruling concerning the certificate-number error, relying principally on the Dedman principle.

1. Appeal allowed in part. The Employment Tribunal's ruling that it had jurisdiction in respect of the defective ACAS early-conciliation number was set aside and remitted to the same Tribunal. The perversity ground was dismissed.

2. The relevant question under section 111(2)(b) of the Employment Rights Act 1996 was whether it had been reasonably practicable to present a valid claim within time. The inquiry concerned the Claimant's state of mind, assessed objectively. A reasonable mistaken belief may be an impediment, but a claimant represented by professional advisers is bound by their unreasonable failure to present a valid claim in time.

3. The Tribunal had found that the solicitors were unquestionably at fault for failing to check the ET1 sufficiently to identify the incomplete certificate number. It was entitled to regard fault as not automatically equivalent to unreasonableness. The technical nature of the error, and the Claimant's decision to undertake formal completion of the form herself in order to reduce costs, were potentially material when assessing the solicitors' conduct.

4. However, the Tribunal did not demonstrate that it had decided the crucial issue: whether it was reasonable for the Claimant to rely on the first ET1 despite the solicitors' failure to check it. If their conduct was unreasonable, the Dedman principle meant that a valid claim could reasonably have been presented in time. The Tribunal's analogy with Adams did not answer that question, since the Dedman point had not been raised there.

5. The mandatory rejection provisions in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 created the consequence of an inaccurate early-conciliation number. The overriding objective could not mitigate that mandatory requirement. The corrected claim's date was therefore governed by the relevant procedural rules, subject to the statutory reasonable-practicability inquiry.

• Employment Appeal Tribunal: Allowed the Respondent's appeal in part and remitted the reasonable-practicability issue concerning the ACAS certificate number.
• London (East) Employment Tribunal: Held that the original ET1 was correctly rejected, but accepted jurisdiction because presentation of a corrected claim in time had not been reasonably practicable.